Cowen v. The Attorney-General for British Columbia ex rel. College of Dental Surgeons for B.C.

Cowen v. The Attorney-General for British Columbia ex rel. College of Dental Surgeons for B.C.
Collection
Supreme Court Judgments
Date
1941-04-21
Report
[1941] SCR 321
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert
On appeal from
British Columbia
Subjects
Constitutional law
Professional law
Decision Content
Supreme Court of Canada
Cowen v. The Attorney-General for British Columbia ex rel. College of Dental Surgeons for B.C., [1941] S.C.R. 321
Date: 1941-04-22
David Cowen and News Publishing Company, Limited (Defendants) Appellants;
and
The Attorney-General For British Columbia Ex Rel. College of Dental Surgeons For British Columbia (Plaintiff) Respondent.
1941: March 31; 1941: April 22.
Present: Duff C.J. and Rinfret, Crocket, Davis, Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law—Dentistry Act—Section 63 enacting prohibitions affecting unregistered dentists—Validity—Whether intra vires as to foreign Dentists—Prohibitory advertisement by the latter in the province—Holding out "as being qualified or entitled" to practice—Injunction—Section 63 of the Dentistry Act, R.S.B.C., 1936, c. 72, as enacted in the statute of 1939, c. 11, s. 3.
Subsection (2) of section 63 of the Dentistry Act, R.S.B.C., 1936, c. 72, added thereto by 1939, c. 11, s. 3, which provides that "no person "not registered under this Act shall *** hold himself out as "being qualified or entitled to practise the profession of dentistry "either within the province or elsewhere, *** or circulate or "make public anything designed or tending to induce the public to "engage or employ as a dentist any person not registered under this "Act," is intra vires the powers of the legislature.
Prima facie this legislation is within the provincial legislative sphere and there is no circumstance in this case which would have the effect of rebutting this prima facie conclusion. The statute does not profess to prohibit people going beyond the limits of the province for the purpose of getting the benefit of the services of a dentist, or to regulate their conduct in doing so; nor does it prohibit the sending into the province from abroad of newspapers and journals containing the advertising cards of practising dentists; nor does it prohibit any communication with the province from abroad.
Union Colliery Company of British Columbia v. Bryden, [1889] A.C. 580 dist.
Judgment of the Court of Appeal (55 B.C.R. 506) affirmed.
APPEAL from the judgment of the Court of Appeal for British Columbia[1], affirming the judgment of the trial judge, Murphy J.[2] and maintaining an action for an injunction to prevent publication of advertisements in the daily paper of the appellant, the News Publishing Company, Limited, at Nelson, B.C., on behalf of and by the authority of the appellant Cowen, who is not a member of the College of Dental Surgeons, holding him out as a dentist practising in the city of Spokane, in the State of Washington, U.S.A.
J. W. de B. Farris K.C. for the appellants.
R. L. Maitland K.C. for the respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This appeal raises the question of the validity of an amendment to the British Columbia Dentistry Act, R.S.B.C., 1936, chap. 72, s. 63, which was enacted in 1939 by chap. 11, s. 3, of the statutes of that year. The section as amended reads as follows:— No person not registered under this Act shall, within the Province, directly or indirectly offer to practise, or hold himself out as being qualified to practise, the profession of dentistry either within the Province or elsewhere, and no person shall, within the Province, directly or indirectly, hold out or represent any other person not registered under this Act as practising or as qualified or entitled or willing to practise the profession of dentistry in the Province or elsewhere, or circulate or make public anything designed or tending to induce the public to engage or employ as a dentist any person not registered under this Act.
Prior to the passing of this amendment the Dentistry Act had established certain prohibitions affecting persons not registered under the statute in respect of the practice of dentistry in British Columbia. In effect, it forbade such persons to offer to practise dentistry in British Columbia, and prohibited anybody from holding out any such person as entitled or qualified to practise dentistry in that province.
The result of the amendment is to bring under the ban of these prohibitions cases where the offer to practise or the holding out, relates to the practice of dentistry outside the province, and the capacity of a provincial legislature to pass such legislation is challenged by the appeal.
The decisive consideration, in my opinion, is that the prohibitions are directed against acts done within the province. Prima facie the legislation is within the provincial legislative sphere. Nor do I think (subject to an observation to be made upon one feature of the amending statute) there is any circumstance present here which has the effect of rebutting this prima facie conclusion. The statute does not profess to prohibit people going beyond the limits of British Columbia for the purpose of getting the benefit of the services of a dentist, or to regulate their conduct in doing so; nor does it prohibit the sending into British Columbia from abroad of newspapers and journals containing the advertising cards of practising dentists; nor does it prohibit any communication with British Columbia from abroad. Such prohibitions would present an entirely different question.
There is one feature of the statute to which it is desirable to advert. By section 63 of the principal Act, which is now section 63, subsection (1), there is a definition of "practising the profession of dentistry within the meaning of this Act." By section 2 of the amending Act of 1939, section 63 is amended by bringing within the category of persons who are deemed to be practising dentistry within the meaning of the Act
any person *** who supplies or offers to supply to the public artificial teeth, dentures or repairs therefor.
It would seem to be at least arguable that the statute as amended in 1939 prohibits the publication in British Columbia by persons carrying on business outside the Province of advertisements stating that they are manufacturers of or dealers in dental supplies of the description or descriptions mentioned. It is unnecessary to consider this aspect of the amendments of 1939. It might be argued, not without plausibility, that any prohibition of the publication in British Columbia of such advertisements in respect of articles of commerce is legislation in relation to a matter that is not a local British Columbia matter, within the contemplation of sections 91 and 92 of the British North America Act. Assuming the amending legislation to be pro tanto invalid by reason of this particular feature of it, the offending parts seem to be plainly severable; and no such question is raised by the advertisements before us.
The argument of Mr. Farris was largely based upon Bryden's case[3]. There it was held that the statute (having regard to its necessary effect) invaded the legislative field assigned exclusively to the Dominion by section 91(25) "naturalization and aliens." Subject to what has just been said, the principle of the judgment in that case does not apply here.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Farris, Farris, McAlpine, Stultz, Bull & Farris,
Solicitors for the respondent: Maitland, Maitland, Remnant & Hutcheson.
[1] (1940) 55 B.C.R. 506; [1941] 1 W.W.R. ; [1941] 1 D.L.R. 565.
[2] (1940) 55 B.C.R. 370; [1940] 3 W.W.R. 242; [1940] 4 D.L.R. 755.
[3] [1899] A.C. 580.